First FISA Court Amicus Curiae

After the unexpected sunsetting of the USA PATRIOT ACT in June, congress was able to take a step forward in public privacy by passing the USA FREEDOM ACT. However, in the end, the American people only got two changes to the way the NSA was conducting surveillance. Fortunately, one of those changes is finally beginning to take shape.

Two Worthwhile Changes to NSA Surveillance

The passing of the USA Freedom Act changed the US government’s surveillance program in essentially only two ways. The first of which was the handling of telephone metadata. The USA Freedom Act takes the bulk collection of metadata out of the government’s hands and leaves it under the custody of the telecom companies themselves.

The FISA Court will still be the judicial overseerer of the search warrants and will continue to act secretly. However, the key is that the government will need to get approval for all searches instead of already having the stockpile in their possession and able to query it whenever they want.

This victory is hollowed by the fact that the bill provided 180 days to in order for the NSA to stop its current metadata collection program. This collection, of all telephone metadata, which was operating under the authorities given in section 215 of the Patriot Act, was ruled unconstitutional by the 2nd District Appeals Court in May of this year. Nevertheless, the NSA was able to argue in court that the USA Freedom Act gave them the go ahead to continue business as usual because of the 180 day provision.

Crazy, huh?

The second useful provision in the Freedom act was the amicus curaie addition. This was in response to civil rights’ activists claims that there was no one representing the people in the FISA Court. Since its inception in 1978 the FISA court has exclusively held closed door judicial proceedings in which the government agency requesting information was the only side present (ex parte).

Even though the court’s reasoning was national security it is still astonishing that only one side in judicial proceedings was ever heard. Couple this with the fact that the FISA Court has denied only 11 out of 33,900 requests (.03%) in the past 33 years and it’s clear that it is time for a change.

Friends of the Court- For Our Sake Hopefully Not Too Friendly

The amicus curiae provision was one that many privacy activists like the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC) pushed hard for.

Amicus curiae is Latin for ‘friend of the court.’ Amici curiae are non-biased third parties to a court case. They have not been solicited by any party of a judicial proceeding but offer their expert opinion to the court. These are usually organizations with sizable legal budgets that are able to submit their opinions if solicited by the court.

This might mean, for example, that the American Civil Liberties Union (ACLU) will offer a legal opinion or testimony in a case in which it is not a litigant itself.

However, the amicus curiae addition seemed to be an empty victory as well. Immediately following the passing of the Freedom Act the FISA Court (almost) comically noted:

Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

The court went on to say:

Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is “not appropriate” to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A).

At this point it looked as if the Freedom Act was even weaker than initially thought. However, in early September the FISA Court approved its first amici curiae under the radar. The Intercept was the first to notice, and even they didn’t catch the appointment until a few weeks later.

The FISA Court named Preston Burton. A lawyer who has been both a criminal defense attorney and federal prosecutor. He has worked on several high profile cases including representing accused spies like former FBI Special Agent Robert Hanssen who was accused- and ultimately convicted- of spying for the Soviet Union for 22 years; and former CIA intelligence agent Aldrich H. Ames- who was tried and convicted for spying for the Soviet Union as well.

Although he may have lost the two cases it is clear that he is not afraid of fighting an uphill battle. Representing tough clients is something that many attorney’s stray away from. And honestly, the American people, are a tough client to represent given that he would essentially be up against the most powerful government in the world- and agencies like the NSA and FBI that are not used to hearing the word ‘no.’

In addition to his experience in tough high profile cases, Burton has also held Top Secret clearances through several points in his career.

Although Mr. Burton is the first of five amici curiae able to be appointed the court says that they will only solicit submissions in ‘certain matters.’ The discretion of using any amicus curiae is solely up to the court.

Preston Burton is not a bad choice for the initial appointee, but some activists remain skeptical. Jeramie Scott who is the national security counsel for EPIC said, “Without an institutional base and with all the secrecy obligations at FISA there is a very serious risk of ‘capture.’ He will need to be extremely independent to safeguard all of the interests that role requires.”